MDL sought in NCAA concussion litigation.

In the past I discussed multidistrict litigation (MDL) and when it is strategically advantageous. MDL is similar to a class action, but distinct. MDL is appropriate when there are one or more common questions of fact involved in different lawsuits that are pending in different judicial districts. In such cases, the actions may be transferred to any district for consolidated pretrial proceedings.

Certification as a class action requires common questions of fact -- or law -- and more. It requires a proposed class too large to join all the members in the pending lawsuit, the same or similar claims and defenses among the class members, and the lead plaintiffs must fairly and adequately represent the entire class's interests. A class action also requires either the risk of inconsistent or preclusive results in other lawsuits if the class is not certified, or that the common questions of law or fact predominate over those affecting only individual members.

The latest NCAA concussion litigation is a good example of a case where consolidation for MDL is sought. The first case was filed in 2011, and several more have been filed this year.

When is multidistrict litigation strategically advantageous?

I previously provided a primer on multidistrict litigation (MDL). Basically, MDL is appropriate when there are common questions of fact in two or more cases in different federal district courts. MDL consolidates the pretrial proceedings and places them in one forum. When the pretrial proceedings are complete, the cases are sent back to the courts from which they came.

MDL is a strategic consideration. In the paradigmatic example, a group of plaintiffs is not certified for a class action, and a corporate defendant tries to use MDL. In such a case, MDL is beneficial for both the defendant and plaintiffs, because it lowers litigation costs, and promotes efficiency and consistency. If the defendant's strategy is to delay litigation, which is common but ethically improper, MDL may not in the defendant's best interest.

A primer on Multidistrict Litigation.

If you are familiar with legal process, you may have heard of multidistrict litigation (MDL). Even if you are familiar with legal process, you may not be aware of MDL. Not all attorneys are familiar with it because it is an uncommon procedure used in complex civil litigation. As its name suggests, MDL deals with multiple cases involving common questions of fact in multiple federal district courts. In cases where class certification is appropriate for purposes of a class action, the case would previously have been appropriate for MDL as well. However, MDL is not appropriate once a class has been certified.

Not all cases appropriate for MDL are appropriate for class certification. Class certification requires common questions of law or fact, as well as a number of other criteria. With class certification, the preceding cases can, but need not be, in different federal district courts. In cases where MDL and/or class certification are available, the particular method selected is a strategic consideration.

Any real similarities or comparisons between the two methods ends there. There is a Judicial Panel on MDL made up of seven judges from different federal districts, appointed by the Chief Justice of the Supreme Court. During cases involving common questions of fact, any party in any of those cases can file a motion to transfer the actions under the MDL statute (28 U.S.C. 1407). The Judicial Panel can transfer cases on its own, but usually a party has to file a motion. The Judicial Panel decides whether to grant or deny motions to transfer before MDL, and whether to grant or deny motions to remand when MDL is complete. Here is a handy checklist for attorneys filing a new MDL motion.

Once a party files a motion to transfer any number of cases (two or more), the Judicial Panel sets the motion for hearing, notifying all parties in all districts that would be affected by the transfer. Filing a motion to transfer is an exercise in transcription, because one must include all parties in all cases where transfer is sought. If the motion is granted, copies of the order transferring the case are sent to each court from which a case is transferred. If the motion is denied, the order is filed only in districts where there is a pending motion to transfer.

If the motion is granted, MDL is only operative in pretrial proceedings. Pretrial proceedings in MDL cases are not conducted before the Judicial Panel, but are instead conducted in the court specified in the motion to transfer and its resultant order. When the cases are ready for trial, they are remanded to the district court from which they were transferred. If the Judicial Panel sees fit, it has discretion to separate claims, counterclaims and cross-claims before the pretrial proceedings are complete.